Dear Barstool Sports: No You Cannot Sue The NFL For Its Non-Infringing Merchandise. Also, Relax.
from the falling-off-the-stool dept
It has certainly been a turbulent year for the NFL. The league is reeling from ratings declines, accusations of political bias, its own versions of the #MeToo wave that has collided with our larger culture, and a seemingly never ending controversy over how players comport themselves during the National Anthem that essentially works as a feedback loop of outrage on every side helped along by the man holding the highest public office in our union. With that in mind, relatively small intellectual property dust-ups may seem low on the eyeball list for those following the league, but it’s still worth pointing out when the league gets IP questions wrong, as it often does.
Yet not every accusation lobbed in its direction is valid and the rather over the top response from one online outlet over the branding of some t-shirts is one that is not. The background on this is that Barstool Sports is a part humor, part satire, part sports blog with a turbulent relationship with Roger Goodell and the NFL. The Boston iteration of the site has been a particularly virulent thorn in the NFL’s side and made much of its name when the league suspended Tom Brady for deflating some footballs. The site also pitches a line of t-shirts with the phrase “Saturdays are for the boys” on them, which I suppose is some kind of a nod to college football. Well, the NFL recently came out with a line of “Sundays are for the [blank]” line of shirts, with the blank being each of the 32 NFL teams that famously play games on Sundays. This did not escape Barstool Sports’ attention.
But this I cannot stand for. I’m not letting this rat fuck Roger Goodell pull one over on me. I’m not letting him stand at the podium at the Super Bowl, say he’s never heard of Barstool Sports, then start slinging SAFTB gear in the NFL.com store. That’s fucking bullshit and I wouldn’t be a man if I let it slide. I don’t know what I’m gonna do because I’m not entirely sure that this is actionable, as we don’t own every day of the week, but I’ve never let the rules stop me from making a scene before, Roger. I’ll get Charlie Kelly to draw up a C&D in crayon and I’ll go sit my ass in the lobby at Park Ave, a place where I’m banned from enter, again. I’ll have Michael Portnoy Esq bury you up to your eyeballs in paperwork. I’ll start selling so many goddamn NFL copyright infringing t-shirts it’ll make your head spin.
First and foremost: bros, take a breath. Whatever the relationship between Barstool Sports and the NFL, these t-shirts are not some threat to the site’s merchandise income. As for the intellectual property question here, there really isn’t one. A phrase of this nature, this size, and this level of creative originality isn’t going to be the cornerstone of the copyright lawsuit of the century, and that’s without taking into account the NFL’s large cadre of lawyers. On the trademark front, the phrases are both non-unique enough and sufficiently different so as to wave off any concerns about public confusion. There’s just nothing here.
But if the threat of selling copyright infringing merch on Barstool’s end isn’t some joke, or perhaps even if it is, such statements serve as great evidence for any willfull infringement claims the NFL might want to make against the site in the future. Some of the media coverage has included questioning what the upside for the NFL is in using such a similar phrase, which is fairly silly. The upside is selling the shirts. The real question is: what is the downside? The answer is pretty clearly: there is none.